Padam Singh vs State of Himachal Pradesh etc.

D.B. Lal, J.—This is an appeal by Padam Singh against the decision of a learned single Judge of this Court, whereby he has dismissed the writ petition seeking to quash notifications under the Himachal Pradesh Panchayati Raj Act, 1968, establishing Gram Sabhas Gumma and Bakhole as a result to trifurcation of Gram Sabha Maihasu and also elections of Respondents as Panches to these Gram Sabhas. The Petitioner came to court with the allegations, that formerly 41 villages comprised Gram Sabha Mahasu, but under notification No. 28/3/69 dated July 1,1972, u/s 4(2) of the Himachal Pradesh Panchayati Raj Act, 1968, 12 villages were excluded from the area of Gram Sabha Mahasu which were subsequently given to Gram Sabha Bakhole and 6 villages were excluded from the Gram Sabha Mahasu and were subsequently given to Gram Sabha Gumma. However, according to petition, a notification u/s 5(1) was neither issued nor published in the Gazette. As such, the Petitioner contended that the Gram Sabhas Bakhole and Gumma were never established. Nevertheless elections took place in the three Gram Sabhas Mahasu, Bakhole and Gumma, and Respondents 9 to 21 were elected Panches for Mahasu while Respondents 22 to 30 were elected Panches for Gumma and Respondents 31 to 39 were elected Panches for Bakhole. The Petitioner could not participate in the election as the very constitution of Gram Sabhas Bakhole and Gumma was invalid and the truncated Gram Sabha Mahasu with 23 villages could not be identified as such. The Petitioner further contended that u/s 9 the number of persons to be elected for Gram Panchayats was to be determined and that notification was also not published. As such, according to Petitioner, the number fixed for the three Gram Panchayats could not be legally determined. That was an additional reason why the Petitioner could not stand in the election. On these facts and allegations, the Petitioner graved for the cancellation of the order establishing Gram Sabhas Gumma and Bakhole and also prayed for the quashing of the election of these Respondents to the three Gram Panchayats. It was further prayed by the Petitioner that elections to subsequent bodies, namely Nyaya Panchayat, Panchayat Samiti and Zila Parishad, be also prohibited to be held.

The Respondents contested that proper notifications were issued under Sections 5 and 9 and no exception can be taken in that regard. The Petitioner has no locus standi because he belonged to village Chaunri which still remains part of Gram Sabha Mahasu. He should not be held to be affected by the election of Panches for the Gram Sabhas Bakhole and Gumma. Besides this, the Respondents contended, that the Himachal Pradesh Panchayati Raj (Second Validation) Ordinance, 1974 (hereinafter to be referred Ordinance No. 8 of 1974) has validated the notifications under sections 4, 5 and 9 and no court of law can refuse to give effect to any such notification, and the Gram Sabhas should be deemed to be validly constituted.

The learned single Judge before whom the writ petition was laid, held that the exclusion of area from Gram Sabha Mahasu did not disturb the corporate character of that Gram Sabha. The Petitioner''s village being already incorporated, he should have no cause of action against the elections held for the other two Gram Sabhas. The learned single Judge also held that the notification u/s 9 did not require to be notified or published, and hence it was a valid notification and the number of Panches was rightly determined. With these findings, the writ petition was dismissed.

The Petitioner has now come up in appeal against the order of the learned single Judge.

In order to appreciate the points in controversy, the relevant statutory provisions need be reproduced. Section 2(30) of the Himachal Pradesh General Clauses Act, 1968, defines "notification" as below:

(30) "notification" shall mean a notification published under proper authority in the Official Gazette.

A few sections of the Himachal Pradesh Panchayati Raj Act, 1968, may, so far as these are relevant, now be enumerated as under:

(1) The Government may, by notification, declare any village or group of contiguous villages with a population of not less than five hundred and not more than five thousand to constitute one or more Sabha areas:

(2) The Government may, by notification, include any area in, or exclude any area from the, Sabha area.

(1) The Government may, by notification, establish Gram Sabha by name in every Sabha area.

(1) Every Sabha shall, in the prescribed manner, elect from amongst its members an Executive Committee consisting of such number of persons not being less than seven {or more than fifteen, as the Government may determine:

(1) The Government may, by notification, delegate all or any of its powers under this Act other than the powers to make rules, to a Deputy Commissioner or the Sub-Divisional Officer as the case may be or the Director.

Section 2(1) and (2) of the Ordinance No. 8 of 1974 is in the following terms:

(1) Notwithstanding anything to the contrary contained in the Himachal Pradesh Panchayati Raj Act, 1968, the Sabha areas constituted and the Gram Sabhas established in the various Sabha areas in the State of Himachal Pradesh and functioning immediately before the commencement of this Ordinance shall be and shall always be deemed to have been validly constituted and established irrespective of the fact that the requisite notifications under the provisions of sections 4, 5 and 48 read with Section 9(1) of the Panchayati Raj Act, 1968, have not been issued or if issued have not been published in the Rajpatra, Himachal Pradesh, and all orders made, proceedings taken and acts done in pursuance of the aforesaid provisions shall be deemed to be and always to have been validly made, taken and done as if the said notifications had been duly issued and published in the Rajpatra, Himachal Pradesh. The particulars of the Gram Sabhas functioning immediately before the commencement of this Ordinance are given in the schedule attached to this Ordinance.

(2) No court or authority, whether Civil, Criminal or Revenue, shall entertain any suit, claim, appeal or application or shall reverse, annul, amend, declare invalid, or refuse to give effect to any notification, order, rule, bye-law, instrument or document whatsoever, merely on the ground that at the time when such suit or case was tried or such thing was done, or such notification, order, rule, bye-law, instrument,, or document was issued, made or executed Gram Sabha included in the Schedule and/or the corresponding Sabha area was not validly constituted.

The foremost contention of the Appellant is that the notification u/s 5(1) was neither issued nor published and that the notification u/s 9(1) was issued but not published. As defined in Section 2(30) of the General Clauses Act it was only after publication in the Official Gazette that the notification could be construed as a notification for the purpose of these sections in the Himachal Pradesh Panchayati Raj Act, 1968. As regards Section 5, a clear distinction has been drawn as to the Sabha Area to be constituted and as to the Gram Sabha to be established. The constitution of the Sabha Area is done u/s 4(1) while the establishment of Gram Sabha takes place u/s 5(1). If the notification u/s 5(1) was neither issued nor published, which fact is not denied, the two Gram Sabhas Bakhole and Gumma were not established. In other words 18 of the villages excluded from the Sabha area of Gram Sabha, Mahasu, will have no Gram Sabha of their own. The effect would no doubt be far reaching. The Petitioner may have electors in those 18 villages in accordance with the delimitation of the constituencies, of which the details are unknown. The Petitioner might suffer inasmuch as a considerable part of his area has been severed from Gram Sabha, Mahasu, and no Gram Sabha has been established in respect thereof. In this manner the Petitioner has a locus standi and he is very well affected by the illegal establishment of the two Gram Sabhas Bakhole and Gumma. Similarly, the Panches elected from these two Gram Sabhas cannot be stated to be duly elected. When the Gram Sabhas were not there, how could the election of Panches take place. Such an election has got to be set aside. Therefore the argument of the learned Judge that the Appellant does not reside within the Sabha Area of Bakhole and Gumma and that his own village is still included in Gram Panchayat, Mahasu, is of no avail and does not render the Appellant a disinterested party. After all trifurcation of Sabha Area and Gram Sabhas took place and the prescribed law was not followed. The Petitioner could not have contested the election in the circumstances. Besides, he was equally interested in the voters residing in the Sabha Areas of Bakhole and Gumma and he could even be a Member from there. Unless the Respondents point out a delimitation of constituency which debarred the Appellant from standing within the Sabha Areas of Bakhole and Gumma, he cannot be excluded from the election. The learned Chief Justice who decided this writ petition, himself held, in The Danda Annj Gram Sabha etc. v. The State of Himachal Pradesh I.L.R.1973 H.P. 390 that there should be no confusion as to the "Gram Sabha" and the "Sabha Area" as contemplated in sections 4 and 5 of the Act. Therefore, there may not be any disturbance in the Corporate Body when the Sabha Area is excluded from that Body, nevertheless the new Gram Sabha has got to be established under a separate provision of the Act. In the instant case it was not done.

The learned Counsel for the State referred to the Himachal Pradesh Panchayati Raj (Validation Ordinance, 1974)(Ordinance No. 6 of 1974) and the Himachal Pradesh Panchayati Raj (Second Validation) Ordinance, 1974 (Ordinance No. 8 of 1974) in this connection. We need not refer to Ordinance No. 6 of 1974 because the same seems to have been looked after in Ordinance No. 8 of 1974 which is all embracing. Thus we can as well refer to Ordinance No. 8 of 1974 in order to see if any benefit can be extended to the Respondents. In this Ordinance, as is clear from its Section 2, defects in the constitution of Sabha Area and establishment of Gram Sabha have been cured, which are that notifications under sections 4, 5 and 48 read with Section 9(1) were not issued or if issued were not published in the Rajpatra. Since a reference is made to Section 5, it may be argued that the said provision protects the constitution and establishment of the three Gram Sabhas. In other words, if the notification u/s 5(1) was neither issued nor published, merely because of that defect, the constitution and the establishment of Sabha Area or Gram Sabha will not be affected. In fact the notifications will be deemed to be issued and published by a legal fiction introduced in the provision. The genesis of Ordinance No. 8 of 1974 was in the decision of the learned Chief Justice in Bali Ram v. State of Himachal Pradesh etc. I.L.R.1974 H.P. 231, where it was held that the constitution of the Gram Sabha was void and so was the entire election process thereafter, because the notification u/s 4(2) was not published in the Rajpatra as required under the Himachal Pradesh General Clauses Act, 1968. In order to do away with the effect of that decision that Ordinance No. 8 of 1974 was promulgated. The learned Counsel for the Appellant spelled out from this an encroachment on the judicial power. As held by their Lordships in Tirath Ram Rajindra Math v. State of U.P. and Anr. 1973 S.C. 405 , the nullification of the effect of a judicial decision by changing the law retrospectively is within the permissible limits and will not be held to be an encroachment on the judicial power. But at the same time their Lordships have not deviated from their earlier view in State of Tamil Nadu and Another Vs. M. Rayappa Gounder and Others, that the change of law retrospectively at the instance of the legislature should not be an attempt to over-rule a decision of the High Court but should be an attempt to remove the invalidity pointed out by the High Court in that law. A Court''s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. The invalidity can be done away with only, if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the provision is made legal. The Ordinance, argues the learned Counsel, has not touched the basis of invalidity. Or, in other words it could have said that the notification was either not required to be issued or published for bringing in the effect of Sections 4, 5 and 48. This the Ordinance has not done. It has rather attempted to outwit the decision of the High Court in Bali Ram (Supra). The learned Counsel also submits that the Gram Sabhas and Panchayat elections conducted thereafter in respect of these 72 Gram Sabhas are being held valid and legal, despite want of either notification or its publication and these Gram Sabhas stand on a different category as compared to the other Gram Sabhas for which valid notifications were issued and also published. This would be discrimination in the eye of law and the provision can be hit by Article 14 of the Constitution.

The argument advanced by the learned Counsel appeared tempting and we were inclined to accept it, but in the present case we consider that it may not even be necessary to declare the Ordinance ultra vires. The reason is, that Section 9 has not been protected under Ordinance No. 8 of 1974. As evident from the language of Section 9(1) the determination of the number of Panches has to precede the election of the members of the Executive Committee. All that is done under a prescribed manner, and Rule 3 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1972, lays down as follows:

Delimitation of constituencies (Wards).- As soon as the notification determining the number of members of the Gram Panchayat of a Gram Sabha u/s 9(1) of the Act is issued, the Deputy Commissioner shall divide the Gram Sabha into constituencies on the basis of the number so determined:

Provided that before issuing the final order delimiting the constituencies, the Deputy Commissioner or any officer authorised by him shall hear objections, if any, in respect thereof, for which a public notice shall be given.

The very first sentence necessitates notification for determination of the number of the members of the Gram Panchayat of a Gram Sabha u/s 9(1). Again, the word "notification" has the same meaning as defined in the Himachal Pradesh General Clauses Act. The notification u/s 9(1) issued by the Deputy Commissioner was not published in the Rajpatra. This is so admitted by the State counsel. That being so, it would not be a notification at all in the eye of law. As such the number was not determined and when the number was not determined how could division of constituency take place and how could the election be held. A reading of the Ordinance No. 8 of 1974 makes it clear that the notification u/s 9 was not referred to in Section 2(1). In fact that notification was not even contemplated because the opening three lines of Section 2(1) indicate the constitution of Sabha Area and establishment of Gram Sabha. That is not the subject matter of Section 9(1): rather Section 9(1) deals with the determination of the number of the members of the Executive Committee. It neither deals with the Sabha Area to be constituted nor Gram Sabha to be established. That is the function under sections 4 and 5 of the Act. Therefore Section 2(1) of the Ordinance No. 8 of 1974 will be of no help to the Respondents,

The learned Counsel for the State then referred to Sub-section (2) of Section 2 of the Ordinance No. 8 of 1974. In our opinion Sub-section (2) necessarily refers to the defect pointed out in the constitution of Sabha Area and establishment of Gram Sabha and that defect too was confined to the notifications which were neither issued nor were published nor both. To read Sub-section (2) to convey an omnibus meaning to the effect that any defect legal or otherwise in the constitution of the Gram Sabha is cured under Sub-section (2), will be to give a premium to obliterate the entire Himachal Pradesh Gram Panchayat Act, 1968. That must not have been the purpose behind Sub-section (2) and the draftsman is presumed to have thought of only the limited defects in the notifications, namely, the defect of not being issued or not being published in the Official Gazette. To that extent the jurisdiction of the Court has been debarred and the Gram Sabha is to be considered validly constituted and its orders validly passed. Therefore, in our opinion Sub-section (2) will also be of no help to the Respondents.

In Balwant Singh etc. v. The State of Punjab etc. 1973 Cri.L.J. 238, the notifications for the establishment of Gram Sabha were not published and elections were held. It was held that no elections could be held unless proper notification was published as required under law. The Government had first to specify the number of Panches to be elected and this number had to depend on the population of the Sabha Area. Thereafter delimitation of constituency had to take place under Rule 3. The entire election proceedings were held to be vitiated for want of the publication of the notification in the Official Gazette. A similar situation has arisen in the present case.

In the result, we cannot but hold that the number of the members of the Executive Committee was not determined u/s 9(1) and so the elections of Respondents 9 to 39 as Panches to the Gram Sabhas/Gram Panchayats, Gumma and Bakhole are null and void and as a consequence the Respondents 1 and 2 are prohibited from proceeding to hold elections of Nyaya Panchayat/Panchayat Samitis and Zila Parishads which concern these three Gram Sabhas.

The appeal is allowed and the decision of the learned single Judge is set aside. The Appellant shall get his costs from the Respondents 1 and 2. Counsel fee at Rs. 200/-.